Concluded Agreements by Pearl Willis

SCHEDULE OF AUTHORITIES

1. Edgar v Edgar 1981

2 FLR 19 2. Camm v Camm 1983 4 FLR 577

3. Kelley v Cornston 1998 1 FLR 986

4. Xydhias v Xydhias 1999 1 FLR 683

5. Smith v Smith 2000 3 FCR 374

6. X v X (Y and Z Intervening), 2002 1 FLR 508

The starting point on the issue of concluded agreements is with the case of Edgar v Edgar 1981 2 FLR 19. The principles to be decided were set out by Ormrod LJ at page 25

"To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is not intended to be an exclusive catalogue".

In Edgar the agreement was upheld. The next relevant case is Camm v Camm 1983 4 FLR 577 where there is a movement away from the Edgar position. The wife was held to have been under extreme pressure. The agreement was held to be unfair and unjust and the wife should not be bound by it.

In the cases of N v N ( consent Order : Variation) 1994 2 F C R and Smith v McInerney 1994 2 FLR 1077 the agreements reached between the parties was held to be binding.

The position was considered again in Kelley v Cornston 1998 1 FLR pg 986 where Butler- Sloss LJ remarked at page 1013

"The court retains the duty laid upon it under s 25 in respect of consent orders as well as contested proceedings. It has to scrutinise the draft order and to check, within the limited information made available, whether there are other matters which require the court to make inquiries. The court has the power to refuse to make the order although the parties have agreed it. The fact of the agreement will, of course, be likely to be an important consideration but would not necessarily be determinative. The court is not a rubber stamp"

The next case in this area is Xydhias v Xydhias 1999 1 FLR 683 where Thorpe LJ stated at page 692

If the court concludes that the parties agreed to settle on terms then it may have to consider whether the terms were vitiated by a factor such as material non-disclosure or tainted by a factor within the parameters set in Edgar v Edgar. Finally in every case the court must exercise its independent discretionary review applying the s 25 criteria to the circumstances of the case and to the terms of the accord.

Then we move to the case of Smith v Smith 2000 3 FCR 374 which held that an agreement between the parties was only one ingredient within a complex equation. It was only one of the considerations to which weight must be given in determining a claim for ancillary relief: the effect of the agreement should not be tried as a preliminary issue.

In X v X (Y and Z Intervening), 2002 1 FLR 508 it was held

An agreement between the parties was a very important factor in considering what was a just and fair outcome. The court would not lightly permit parties to an agreement to depart from it, and a formal agreement, properly and fairly arrived at with competent legal advice, should be upheld by the court unless there were good and substantial grounds for concluding that an injustice would be done by holding the parties to it. The court must, however, have regard to all the circumstances, in particular to the circumstances surrounding the making of the agreement, the extent to which the parties themselves attached importance to it and the extent to which the parties had acted upon it

Pearl Willis April 03

Concluded Agreements
SCHEDULE OF AUTHORITIES 1. Edgar v Edgar 1981 2 FLR 19 2. Camm v Camm 1983 4 FLR 577 3. Kelley v Cornston 1998 1 FLR 986 4. Xydhias v Xydhias 1999 1 FLR 683 5. Smith v Smith 2000 3 FCR 374 6. X v X (Y and Z Intervening), 2002 1 FLR 508 The starting point on the issue of concluded agreements is with the case of Edgar v Edgar 1981 2 FLR 19. The principles to be decided were set out by Ormrod LJ at page 25 "To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is not intended to be an exclusive catalogue". In Edgar the agreement was upheld. The next relevant case is Camm v Camm 1983 4 FLR 577 where there is a movement away from the Edgar position. The wife was held to have been under extreme pressure. The agreement was held to be unfair and unjust and the wife should not be bound by it. In the cases of N v N ( consent Order : Variation) 1994 2 F C R and Smith v McInerney 1994 2 FLR 1077 the agreements reached between the parties was held to be binding. The position was considered again in Kelley v Cornston 1998 1 FLR pg 986 where Butler- Sloss LJ remarked at page 1013 "The court retains the duty laid upon it under s 25 in respect of consent orders as well as contested proceedings. It has to scrutinise the draft order and to check, within the limited information made available, whether there are other matters which require the court to make inquiries. The court has the power to refuse to make the order although the parties have agreed it. The fact of the agreement will, of course, be likely to be an important consideration but would not necessarily be determinative. The court is not a rubber stamp" The next case in this area is Xydhias v Xydhias 1999 1 FLR 683 where Thorpe LJ stated at page 692 If the court concludes that the parties agreed to settle on terms then it may have to consider whether the terms were vitiated by a factor such as material non-disclosure or tainted by a factor within the parameters set in Edgar v Edgar. Finally in every case the court must exercise its independent discretionary review applying the s 25 criteria to the circumstances of the case and to the terms of the accord. Then we move to the case of Smith v Smith 2000 3 FCR 374 which held that an agreement between the parties was only one ingredient within a complex equation. It was only one of the considerations to which weight must be given in determining a claim for ancillary relief: the effect of the agreement should not be tried as a preliminary issue. In X v X (Y and Z Intervening), 2002 1 FLR 508 it was held An agreement between the parties was a very important factor in considering what was a just and fair outcome. The court would not lightly permit parties to an agreement to depart from it, and a formal agreement, properly and fairly arrived at with competent legal advice, should be upheld by the court unless there were good and substantial grounds for concluding that an injustice would be done by holding the parties to it. The court must, however, have regard to all the circumstances, in particular to the circumstances surrounding the making of the agreement, the extent to which the parties themselves attached importance to it and the extent to which the parties had acted upon it Pearl Willis April 03